McClinton v. Carson
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $5.80 within thirty (30) da ys from the date of this order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the allegations are legally frivolous and fail to state a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B). A separate order of dismissal shall accompany this memorandum and order. ; re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Cortez D. McClinton ( Initial Partial Filing Fee due by 3/28/2015.). Signed by District Judge Carol E. Jackson on 2/26/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CORTEZ D. MCCLINTON,
MEMORANDUM AND ORDER
This matter is before the court on the motion of Cortez McClinton
(registration no. 38789) for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the court finds that plaintiff
does not have sufficient funds to pay the entire filing fee, and therefore, the motion
will be granted, and plaintiff will be assessed an initial partial filing fee of $5.80.
See 28 U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the complaint,
the court finds that this action should be dismissed pursuant to 28 U.S.C. '
28 U.S.C. ' 1915(b)(1)
Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in
forma pauperis is required to pay the full amount of the filing fee. If the prisoner
has insufficient funds in his prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner's account; or (2) the
average monthly balance in the prisoner's account for the prior six-month period.
See 28 U.S.C. ' 1915(b)(1). After payment of the initial partial filing fee, the
prisoner is required to make monthly payments of 20 percent of the preceding
month's income credited to the prisoner's account. See 28 U.S.C. ' 1915(b)(2).
The agency having custody of the prisoner will forward these monthly payments to
the Clerk of Court each time the amount in the prisoner's account exceeds $10,
until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
See 28 U.S.C. ' 1915(a)(1),(2).
A review of plaintiff's account
statement indicates an average monthly deposit of $20.00, and an average monthly
account balance of $3.78. Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the court will assess an initial partial filing fee of $5.80, which
is 20 percent of plaintiff's average monthly deposit.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. An action is frivolous if it "lacks an arguable basis in
either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is
malicious if it is undertaken for the purpose of harassing the named defendants and
not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).
action fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544,570 (2007).
To determine whether an action fails to state a claim upon which relief can
be granted, the court must engage in a two-step inquiry. First, the court must
identify the allegations in the complaint that are not entitled to the assumption of
truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal
conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that
are] supported by mere conclusory statements." Id. at 1949. Second, the court
must determine whether the complaint states a plausible claim for relief. Id. at
1950-51. This is a "context-specific task that requires the reviewing court to draw
on its judicial experience and common sense." Id. at 1950. The plaintiff is
required to plead facts that show more than the "mere possibility of misconduct."
Id. The court must review the factual allegations in the complaint "to determine if
they plausibly suggest an entitlement to relief." Id. at 1951. When faced with
alternative explanations for the alleged misconduct, the court may exercise its
judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the court
must give the complaint the benefit of a liberal construction. Haines v. Kerner,
404 U.S. 519, 520 (1972). The court must also weigh all factual allegations in
favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992).
Plaintiff, a pretrial detainee at the St. Louis City Justice Center, brings this
action pursuant to 42 U.S.C. ' 1983, claiming violations of his Eighth and
Fourteenth Amendment rights by Superintendent Jeffery Carson.
plaintiff asserts state-law claims of negligence and intentional infliction of
emotional distress. Plaintiff alleges that Carson “created a hazardous and unsafe
living environment and conditions for [plaintiff] as well as the other occupants that
is [sic] currently housed in 4C wing by placing known enemies in the same wing.”
Plaintiff further alleges that “[t]he reason these conditions is [sic] unsafe [is that] I
don’t know who is enemies with who and if I socialize with someone who has [a]
beef that also make [sic] me a target because individuals believe I may be siding
with their enemy.”
Plaintiff claims that Carson ignored the problem after it was
brought to his attention, thereby violating “federal and state statutes.”
A. Section 1983 Claims
Because the complaint is silent on the issue, this action is deemed to be
brought against Carson in his official capacity.
See Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a complaint is silent
about defendant=s capacity, court must interpret the complaint as including
official-capacity claims); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Official-capacity suits are tantamount to suits brought directly against the public
entity of which the official is an agent. Kentucky v. Graham, 473 U.S. 159, 166
(1985). To state a claim against a public entity or a government official in his or
her official capacity, a plaintiff must allege that a policy or custom of the public
entity was responsible for the alleged constitutional violation. Brandon v. Holt,
469 U.S. 464, 473 (1985); Monell v. Department of Social Services, 436 U.S. 658,
690-91 (1978). Because plaintiff does not claim that a public entity=s policy or
custom was responsible for the violation of his constitutional rights, the complaint
fails to state a claim or cause of action under ' 1983 against Carson in his official
Additionally, plaintiff lacks standing to bring claims on behalf of other
inmates, and his assertion that defendant Carson violated Missouri state statutes
does not amount to a ' 1983 claim. See Bagley v. Rogerson, 5 F.3d 325 (8th Cir.
1993) (allegation of state law violation, statutory or decisional, does not, in itself,
state claim under federal Constitution or ' 1983). Last, plaintiff’s claim that
defendant is placing “known enemies in the same wing” is not entitled to the
assumption of truth, because it is a legal conclusion devoid of supporting facts.
See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (legal conclusions and
threadbare recitals of the elements of a cause of action that are supported by mere
conclusory statements are not entitled to the assumption of truth); Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004) (although liberally construed, pro se complaint
must still allege sufficient facts to support claim advanced).
For these reasons, the Court will dismiss plaintiff's ' 1983 claims as legally
frivolous and for failure to state a claim or cause of action, pursuant to
B. Pendent Claims
Because plaintiff's federal claims will be dismissed, his remaining pendent
state claims will be dismissed, as well. See 28 U.S.C. ' 1367(c)(3); United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966) (if federal claims are dismissed before
trial, remaining state claims should also be dismissed); Hassett v. Lemay Bank &
Trust Co.,851 F.2d 1127, 1130 (8th Cir. 1988) (where federal claims have been
dismissed, district courts may decline jurisdiction over pendent state claims as a
"matter of discretion").
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $5.80 within thirty (30) days from the date of this order. Plaintiff is
instructed to make his remittance payable to "Clerk, United States District Court,"
and to include upon it: (1) his name; (2) his prison registration number; (3) the case
number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall not issue process or
cause process to issue upon the complaint, because the allegations are legally
frivolous and fail to state a claim upon which relief may be granted. See 28
U.S.C. ' 1915(e)(2)(B).
A separate order of dismissal shall accompany this memorandum and order.
Dated this 26th day of February, 2015.
UNITED STATES DISTRICT JUDGE
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